Exhibit 10.1
AMENDED AND RESTATED SHARE TRANSFER AGREEMENT
THIS AMENDED AND RESTATED SHARE TRANSFER AGREEMENT (this "Amended and
Restated Agreement), dated as of January 12, 2005 as amended and restated as of
May 12, 2005, by and among Harbin Tech Full Industry Co., Ltd., ("Party A"),
Harbin Tech Full Electric Co., Ltd. ("Party B") and Harbin Electric, Inc.
WHEREAS, Party A and Party B were parties to the Share Transfer Agreement
dated as of January 12, 2005 (the "Original Agreement");
WHEREAS, Party A and Party B are companies organized under the laws of the
People's Republic of China ("PRC");
WHEREAS, Party A and Baldor Electric Company ("Baldor") entered into a
Joint Venture Contract dated May 20, 2004 (the "JV Agreement") to jointly
establish a company known as Sino-Foreign Cooperative USA Baldor-Tech Full
Electric (Harbin) Company Limited (the "JV "), of which Party A owns 65%;
WHEREAS, under the terms of the Joint Venture, HTFIC receives 55% of the
profits from the Joint Venture with the remainder of the profits going to
Baldor. The purpose of the Joint Venture is to manufacture and market electric
motors and related equipment in China;
WHEREAS, the Original Agreement provided that Party A would transfer its
interest of sixty-five percent of the JV's equity ownership and all associated
rights with respect to the JV to Party B in exchange for Party B to cause it's
to be formed public parent ("Pubco") to issue 1,000,000 shares of Pubco to Party
A;
WHEREAS, Pubco became a US public company on January 24, 2005 and changed
its name to Harbin Electric, Inc. ("Harbin Electric") on January 26, 2005;
WHEREAS, Harbin Electric agreed to the issuance of the 1,000,000 shares on
February 16, 2004;
WHEREAS, based upon the valuation of the JV by an SEC registered appraiser,
Party B and Harbin Electric discovered that the number of shares issued under
the Original Agreement should have been 786,885; and
WHEREAS, Party A, Party B and Harbin Electric, each desire to amend and
restate the Original Agreement in its entirety to amend the amount of shares to
be issued in exchange for Party A's equity interest in the JV and to make
certain other changes. The Original Agreement shall be of no further force and
effect.
NOW, THEREFORE, in consideration of the mutual promises and covenants set
forth herein, and intending to be legally bound hereby, Party A, Party B and
Harbin Electric agree as follows:
ARTICLE I
DEFINITIONS
Unless it is decided by law, regulations, other legally binding principles,
rules, orders, and notice, or it is decided otherwise in this Amended and
Restated Agreement, the terms and titles in this Amended and Restated Agreement
shall have the following meanings:
1.1 "Shareholder's Right" shall mean all of the JV shareholder's rights
under the laws of the PRC.
1.2 "Interest, Benefit, Claims, and Other Rights Associated with the
Shareholder's Right" shall mean all other rights and benefits that
Party A is entitled to as a shareholder other than the rights as
described in 1.1.
ARTICLE II
TRANSFER OF SHARES
2.1 Party A shall transfer its entire ownership in the JV to Party B
according to the terms and conditions in this Amended and Restated
Agreement, as well as the Shareholder's Right and all the Interest,
Benefit, Claims and Other Rights associated with the Shareholder's
Right. Furthermore, Party A shall transfer all of its rights, benefits
and obligations under the JV Agreement to Party B according to the
terms and conditions in this Amended and Restated Agreement.
ARTICLE III
CONSIDERATION
3.1 Harbin Electric will deliver to Party A, 786,885 shares of its common
stock, par value $0.00001 (the "Shares"). The Shares shall be issued
to Party A or its designated third party.
ARTICLE IV
TAXATION
4.1 All taxation and fees relating to the transfer and performance of this
Amended and Restated Agreement are pursuant to the current taxation
policies under applicable laws of PRC. Party A warrants that under
laws of the PRC, the transfer of equity ownership hereto is a tax free
event.
ARTICLE V
EFFECTIVENESS
5.1 This Amended and Restated Agreement shall come into effect upon the
execution hereof by all the parties hereto.
ARTICLE VI
TERMINATION
6.1 Party A has the right to terminate this Amended and Restated Agreement
only due to the occurrence of Harbin Electric failing to issue the
Shares.
6.2 If Party A terminates this Amended and Restated Agreement due to
Article 6.1 above, Party A does not need to compensate Party B.
However, Party A shall reimburse Party B for any expenses incurred by
Party B provided that Party B can prove that the said expenses were
incurred due to the wrongful actions of Party A, and the said expenses
were incurred.
ARTICLE VII
STATEMENT AND GUARANTEE
7.1 Party A makes the following statements and guarantee:
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(a) It is a duly registered company in good standing under the laws
of PRC.
(b) It invested in the JV in accordance with Chinese law, and there
is no legal impediment for it to obtain the shares of the JV.
(c) It has the right and authority to execute and implement this
Amended and Restated Agreement.
(d) The person signing this Amended and Restated Agreement on behalf
of Party A is duly authorized by the Board of Directors.
(e) It has obtained the necessary consent for the transfer from
Baldor.
7.2 Party B makes the following statements and guarantee:
(a) It is a duly registered company in good standing under the laws
of PRC.
(b) It has the right and the ability to receive the 65% JV interest
under this Amended and Restated Agreement.
(c) It has the right and authority to execute and implement this
Amended and Restated Agreement.
(d) The person signing this Amended and Restated Agreement on behalf
of Party B is duly authorized by the Board of Directors.
7.3 Harbin Electric makes the following statements and guarantee:
(a) It is a U.S. public company duly registered under the laws of
Nevada.
(b) The Shares have been duly authorized by all necessary corporate
action on the part of Harbin Electric.
(c) The person signing this Amended and Restated Agreement on behalf
of Harbin Electric is duly authorized by the Board of Directors.
ARTICLE VIII
DISPUTE SETTLEMENT
8.1 The parties will attempt in good faith to resolve any dispute,
controversy or claim under, arising out of or relating to or in
connection with this Amended and Restated Agreement. If any such
dispute, controversy or claim should arise, such duly authorized
representative of the parties will meet at least once and will attempt
to resolve the matter. If the matter has not resolved, within thirty
(30) days after the first meeting (which period may be extended by
mutual agreement), the parties will attempt in good faith to resolve
the controversy or claim in accordance with the then current Center
for Public Resources Model Procedure for Mediation of Business
Disputes and the costs of the mediator associated with such mediation
process shall be borne equally by the parties.
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ARTICLE IX
GOVERNING LAW
9.1 This Amended and Restated Agreement shall be governed by, construed
and interpreted in accordance with the laws of the PRC.
ARTICLE X
MISCELLANEOUS
10.1 Notice. All notices or other communications under this Amended and
Restated Agreement shall be in writing and shall be deemed to be duly
given when (a) delivered in person, or (b) sent by telecopy, telegram
or telex, or (c) deposited in the mail, postage prepaid, addressed as
follows:
If to Harbin Tech Full Industry Co., Ltd.:
Address: Junction of Raping Road and Weihai Road of Haping
Concentration District, Harbin Development Zone
Attn: Xxxxxx Xx
Tel: 00-000-00000000
If to Harbin Tech Full Electric Co., Ltd.:
Address: Xx. 0, Xx Xxxx Xx Xx, Xx Ping Lu Xx Xxxxx Qu
Xxxxxx Xxx Fa Qu, Harbin, 150060, China
Attn.: Xxxxxx Xxxx
Tel: 00-000-00000000
If to Harbin Electric, Inc.
Address: Xx. 0, Xx Xxxx Xx Xx, Xx Ping Lu Xx Xxxxx Qu
Xxxxxx Xxx Fa Qu, Harbin, 150001, China
Attn: Xxxxxx Xxxx
Tel: 00-000-00000000
Any party may, by notice to the other party, change the address to which
such notices are to be given.
10.2. Assignment. This Amended and Restated Agreement shall not be assigned
by either party without the express written consent of the other
party.
10.3 Provisions Subject to Applicable Law. All provisions of this Amended
and Restated Agreement shall be applicable only to the extent that
they do not violate applicable law and are intended to be limited to
the extent necessary so that they will not render this Amended and
Restated Agreement invalid, illegal or unenforceable under any
applicable law. If any provision of this Amended and Restated
Agreement or any application thereof shall be held to be invalid,
illegal or unenforceable, the validity, legality and enforceability of
other provisions of this Amended and Restated Agreement or of any
other application of such provision shall in no way be affected
thereby.
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10.4 Entire Agreement. This Amended and Restated Agreement constitutes the
entire agreement of the parties with respect to the subject matter
hereof and may be amended or terminated only by a writing executed by
each of them.
10.5 Successors and Assigns. This Amended and Restated Agreement shall be
binding upon, and shall inure to the benefit of, the respective heirs,
executors, legal representatives and other successors and assigns of
the parties to this Amended and Restated Agreement.
10.6 Counterparts; Section Headings; Gender and Number. This Amended and
Restated Agreement may be executed in two or more counterparts, each
of which shall be deemed an original, but all of which together shall
constitute one and the same instrument. The section headings of this
Amended and Restated Agreement are for convenience of reference only
and shall not affect the construction or interpretation of any of the
provisions of this Amended and Restated Agreement. Where appropriate
to the context of this Amended and Restated Agreement, (i) use of the
singular shall be deemed also to refer to the plural and use of the
plural to the singular, and (ii) the use of the word "its" or another
word denoting any gender shall include all genders.
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IN WITNESS WHEREOF, the parties have caused this Amended and Restated
Agreement to be executed by their duly authorized representatives as of the day
and year first above mentioned.
Party A: Harbin Tech Full Industry Co., Ltd.
By: /s/ Xxxxxx Xxxx
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Name: Xxxxxx Xxxx
Title:
Party B: Harbin Tech Full Electric Co., Ltd.
By: /s/ Xxxxxx Xxxx
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Name: Xxxxxx Xxxx
Title:
Harbin Electric, Inc.
By: /s/ Xxxxxx Xxxx
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Name: Xxxxxx Xxxx
Title: Chief Executive Officer
